New electoral body sparks controversy: Stakeholders divided on independence

Dar es Salaam. Yesterday marked the enactment of the Independent National Electoral Commission (INEC) Act No. 2 of 2024, eliciting concerns from stakeholders who deemed it highly contentious.

However, Attorney General Dr Eliezer Feleshi has staunchly defended the legislation, asserting its capability to render the commission autonomous in accordance with Article 74(7) of the Constitution of the United Republic of Tanzania.

Speaking yesterday on Radio Clouds FM, Chadema Vice Chairman Tundu Lissu outlined five critical areas proving the commission’s perceived lack of independence.

He cited longstanding reports from both national and international election observers since 1995 that have consistently shown that the commission is not independent because of the presidential appointment of all commission members, including the CEO and staff.

"All its members are appointed by the President. The chief executive officer is appointed by the President; all its employees are government employees; and according to our Constitution, these employees work on behalf of the President, who is also their disciplinary authority," he said.

Lissu emphasised that this issue was notably addressed in the report of the commission of Judge Joseph Warioba, which scrutinised the commission's structure and operations.

"The entire volume of the Warioba commission on the issue of elections in our country looked at this issue very closely. It said this commission is not independent because it is a commission of the President, because all leaders are presidential appointees," said Lissu.

Highlighting the vulnerability of the commission's tenure, Mr Lissu pointed out its susceptibility to presidential dissolution as per the current constitutional framework.

"Under the current constitution, all members are subject to removal by the President, as they are appointed and dismissed solely at the President's discretion. Consequently, the commission lacks security of tenure, undermining its independence."

He emphasised the commission's dependency on presidential consent for crucial operational decisions, including the creation of electoral districts, which he deemed pivotal in the electoral process.

"The commission's authority to create districts hinges on presidential consent. Without such approval, district creation remains at a standstill, significantly impacting the electoral landscape. Observers have since 1995 highlighted the pivotal role of district delineation in election outcomes, stressing concerns about electoral integrity," he stated.

Regarding the accountability of commission members and staff, he said the disciplinary authority of the commission's employees lies with the president.

"In short, all members of the commission and all its employees, from the polling station supervisor to the commission chairman, have the president as their disciplinary authority. Those who announce the results in the districts are appointed by the president. So, in terms of accountability, this is not an independent commission but the President's," he said.

On financial matters, he said the commission should have its own budget, and once approved, it should have full and exclusive authority to receive funds.

"The commission does not go to queue at the Prime Minister's Office or the Ministry of Local Government to get an allocation to conduct its elections or register voters. It is supposed to get its budget without interference in its spending," Mr Lissu stated.

To ensure the commission's independence, Mr Lissu proposed that the appointing authority should hold no vested interest in the appointment outcomes.

Citing Kenya as an example, he highlighted the inclusion of individuals in the selection committee, judges, commission members, or independent institutions who are insulated from presidential dismissal, thereby safeguarding their autonomy.

"The so-called selection committee should be independent, and it becomes so by being accountable and independent of the one it advises.”

He continued, "The selection committee that receives applications conducts interviews and recommends names, which are then sent to parliament, where they are debated, and if approved, they are then sent to the President for approval," he remarked.

In a phone interview on Thursday, Mr Lissu pointed out that even the name of the commission contradicts Article 74(1) of the Constitution of the United Republic.

He highlighted the historical shift, noting that since 1961, it had been referred to as the Electoral Commission as per constitutional provisions.

In 1992, it was known as the National Electoral Commission; thus, he argued that the adoption of the name Independent National Electoral Commission appears superficial, lacking substantive change in its function or structure.

The National Coordinator of the Tanzania Human Rights Defenders Network (THRDC), Onesmo Olengurumwa, shared his perspective on the unfolding controversy surrounding the implementation of the new law.

"This law started to be implemented yesterday, but the citizens are confused. How do we go about the general election while the commission, its leadership, and everything is based on a law that has been repealed?" he queried.

"I would suggest we start by dismantling the current commission and start everything afresh. Despite the challenges of the law, let's start using it, form an interview team, and conduct elections," he said.

Addressing the critical issue of financial independence, Mr Olengurumwa said the issue should be enshrined in the Constitution to ensure the commission’s autonomy.

"For this commission to be independent, certain things need to be considered, for example, the appointment of members. You cannot say it's an independent commission when members are appointed in ways that do not comply with the legal requirements of independence and transparency," he noted.

In an interview with Mwananchi yesterday, Attorney General Dr Eliezer Feleshi said the opposition's concerns regarding the commission's independence emerged during opinion-gathering meetings, particularly regarding the commission's name.

"Article 74(1) mentions the existence of an electoral commission, and that was the concern of the opposition—that we need an independent electoral commission. If you read the same article 74(7), it says the electoral commission shall be independent and autonomous. They did not buy this and insisted that the commission's name should be independent.”

"Because the Constitution states that there shall be an Electoral Commission of the United Republic of Tanzania, but if its duties are stated in Article 74(7) as being independent, don't you see that that provision addresses the discrepancies?" he queried.

Regarding the commission's name, Dr Feleshi drew parallels with other constitutional bodies like the Judicial Service Commission (Article 112) and the Commission for Human Rights and Good Governance (Article 126), which are explicitly named in the Constitution.

Explaining the rationale behind the commission's name, he emphasised the practicality of adding a name through legislation rather than amending the Constitution, given the legal complexities involved.

When questioned about structural reforms and constitutional amendments to bolster the commission's independence, Dr Feleshi highlighted discussions held at the Centre for Democracy (TCD).

He reiterated President Samia Suluhu Hassan's stance that constitutional amendments are a matter for all Tanzanians, not just political parties.

Despite calls for minor changes, Dr Feleshi indicated that constitutional amendments would require a broader consensus.